Fair Work Commission

Self-representation

You can choose to represent yourself in a case at the Commission. Lots of people do, and we have a range of free resources to help you prepare your case yourself, including:

• Benchbooks give an overview of relevant legal procedure & case law that might help you argue your case
• Practice notes explain how the Commission will deal with your case
• Fact sheets, guides & videos provide more information about what to expect when you come to the Commission

Unpaid representation

In most cases, you can ask a friend or family member to represent you. They can also use all our free resources.

Representation by a lawyer or paid agent

A lawyer is a person who is admitted to the legal profession by a Supreme Court of a State or Territory.

A paid agent is someone who charges or receives a fee to represent you in a case before the Commission (other than a bargaining representative).

You may need to ask us for permission to be represented by a lawyer or paid agent. Our lawyers and paid agents practice note explains when you need to ask for permission to be represented. Our benchbooks also have information about asking for permission in different kinds of cases.

The Commission has received complaints from people who were represented by Employee Claims Pty Ltd ABN 46 638 548 115 (trading as Employee Dismissal Claims) in Commission proceedings. They say that this company received settlement money on their behalf but did not pass the money on to them (for example, by not responding to repeated phone calls and emails.)

The Australian Competition and Consumer Commission also has a Public Warning Notice on its website about the alleged conduct of Dismissals Direct Pty Ltd ACN 616 466 865 (trading as Unfair Dismissals Direct).

Choosing and paying a lawyer or paid agent

If you do decide to use a lawyer or paid agent, make sure you choose carefully. Read their terms and conditions before hiring them. It can also help to look at online reviews.

Is your lawyer or paid agent in Australia or overseas?

Before engaging a lawyer or paid agent, find out where the person who will be handling your case will be. Lots of reputable law firms have offices in other countries, but being represented by someone who is overseas can make things harder.

• You may not be able to reach them in urgent situations because of the time difference.
• They probably won’t come all the way to Australia for a hearing in person at the Commission.

If you’re not sure if your lawyer or paid agent is overseas, consider if:

• when you call them, you aren’t able to speak to a person (for instance, the number connects to an automated messaging service and you are told you will be called back)
• you can only contact them by email, instant messaging, or another online platform
• they always contact you rather than the other way around.

If you want to make sure you’re hiring a lawyer or paid agent who is based in Australia, you can ask for written confirmation that the person who will handle your case is in Australia, or ask for an in-person appointment (where COVID-19 restrictions permit). Make sure you do this before you engage them.

How much are you paying, and what exactly are you paying for?

Before engaging a lawyer or paid agent, make sure you understand how much they will charge you, when you’ll be charged, and what exactly they will do for you.

• Will they prepare your application or response and any written submissions?
• If the case doesn’t settle at conciliation, will they charge you? How much?
• Will they represent you at conciliation as well as any subsequent conference or hearing, or will they only represent you at conciliation?
• Will they charge you if you decide to withdraw your application without their approval?
• Will they charge you if you go to a conciliation without them or speak at conciliation without their approval?

Find out what their fee arrangement is.

No win no fee

No win no fee usually means you only have to pay a fee if the case is resolved in your favour.

Make sure you understand all of the fine print before agreeing to this arrangement, including:

• If you have to pay any upfront fees (such as a fixed filing or lodgment fee on top of the application fees that the Commission charges) even if your case is not successful.
• What they think a ‘win’ means. For instance, if the other party offers to pay you a monetary amount and you refuse because you think the offer is too low, will  your lawyer or paid agent consider the offer a ‘win’ and charge you?

Fixed fee

Before agreeing to a fixed fee arrangement, make sure you find out exactly what your lawyer or paid agent will do for you.

The fixed fee might only cover:

• a single consultation (in-person, online or over the phone)
• one document (such as a letter or submission), or
• a one-off appearance at a conciliation, conference or hearing.

You might have to pay extra for further help or representation. This might be another fixed amount, or you might have to pay by the hour even if your lawyer or paid agent isn’t able to secure a favourable outcome for you.

Retainer

A retainer is generally where you make an upfront payment, or repeated payments over a period of time, until your case finishes, even if your lawyer or paid agent isn’t able to secure a favourable outcome for you.

Can I make the other party pay my lawyer or paid agent’s fees?

You generally need to pay your own lawyer or paid agent’s fees, even if you win (we call these fees costs).

It’s very rare that we order the other party to pay your costs. You can read more about these limited circumstances in our Benchbooks including our Unfair dismissals benchbook, General protections benchbook, and Anti-bullying benchbook.

Remember that it’s your case

Before a friend, family member, lawyer or paid agent submits any documents or correspondence to the Commission on your behalf, make sure you are happy with them.

If a representative has submitted inaccurate information to the Commission (for instance if they use the wrong name for a party, or get the facts wrong) this can cause problems for you.

Keep copies of everything your representative sends to the Commission on your behalf.